SUPREME COURT

• CONSTITUTION

State of Tamil Nadu and Anr. Vs.Abdullah Kadher Batcha and Anr. (Decided on 12.11.2008)

Detention order - Protection against arrest and detention in certain cases - Appeal challenge the judgment of the High Court quashing the order of detention passed in respect of one detenu who was directed to be detained on which High Court observed that in view of non supply of the documents a protection available, under Article 22(5) of the Constitution of India, 1950 was violated - Whether detenu would be deprived of making an effective representation in the absence of a document - Whether there is any need to take the detenu back to detention for serving the remainder of the period of detention which was indicated in the order of detention

Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.

In Radhakrishnan Prabhakaran v. State of T.N. and Ors. MANU/SC/0172/2000 Supreme Court has observed that, there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him.

In State of Tamil Nadu and Anr. v. Alagar MANU/SC/8213/2006 Supreme Court has held that,the residual question is whether it would be appropriate to direct the respondent to surrender for serving remaining period of detention in view of passage of time. As was noticed in Sunil Fulchand Shah v. Union of India MANU/SC/0109/2000 and State of T.N. v. Kethiyan Peruma MANU/SC/0877/2004, it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention still survives and whether it would be desirable to send back the detenu for serving remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant State. Passage of time in all cases cannot be a ground not to send the detenu to serve remainder of the period of detention. It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the present order.

• CRIMINAL

A. Maharaja Vs.State of Tamil Nadu (Decided on 14.11.2008)

Punishment for culpable homicide not amounting to murder - Substantive plea relates to the applicability of Exception 4 of Section 300 of Indian Penal Code, 1860 - Whether the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner

The Fourth Exception of Section 300 of Indian Penal Code, 1860 covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.

Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan MANU/SC/0367/1993 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.

The occurrence took place in course of sudden quarrel, therefore, Exception 4 to Section 300 of Indian Penal Code, 1860 applies. The appropriate conviction would be under Section 304 Part-I of Indian Penal Code, 1860. Appeal is allowed.

Hardeep Singh Vs. State of Punjab and Ors. (Decided on 07.11.2008)

Power to proceed against other persons appearing to be guilty of offence - Whether Section 319 of the Code of Criminal Procedure, 1973 could be invoked once criminal proceedings against a person were quashed - Further whether the statement of a prosecution-witness without such witness having been cross-examined, constituted `evidence' within the meaning of Section 319 of the Code

In Michael Machado and Anr. v. Central Bureau of Investigation and Anr. MANU/SC/0103/2000, considering the basic requirements of Section 319 of the Code, Supreme Court has held that, the basic requirement for invoking under section 319 is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

The term `evidence' used in Sub-section (1) of Section 319 of the Code is comprehensive, the Court stated, once the Sessions Court records a statement of the witness it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising court's power under Section 319 Cr.P.C. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material, which would enable the sessions court to decide whether powers under Section 319 should be exercised or not. Sub-section (1) of Section 319 itself provides that in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any persons not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.

The word "evidence" occurring in Sub-section (1) of Section 319 is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the evidence which comes before the Court and from which the Court is satisfied that person not arraigned before it is involved in the commission of the crime. Direct to the Registry to place the matter before the Hon'ble the Chief Justice of India for taking an appropriate action.

M.A. Rumugam Vs.Kittu @ Krishnamoorthy (Decided on 07.11.2008)

Applicability of the provisions of Section 482 of the Code of Criminal Procedure, 1973 for quashing of a complaint petition filed by the respondent against the appellant under Section 500 of the Indian Penal Code, 1860 - Whether the manner in which the complaint petition filed would clearly establish that the action on his part was not in good faith.

The word "good faith" has been defined in Section 52 of the Indian Penal Code to mean, nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. Allegations made in the complaint petition, make out a case for proceeding against the appellant under Section 500 of the Indian Penal Code as thereby imputation concerning the respondent had been made intending to harm or knowing or having reason to believe that such imputation would harm his reputation. For the purpose of bringing his case within the purview of the Eight and the Ninth Exception appended to Section 499 of the Indian Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bona fide would, thus, be on the appellant alone. It would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities. Appeal is dismissed.

• ELECTRICITY

Haryana Vidyut Parsaran Nigam Ltd. and Ors. Vs. Super Star Grit Udyog (Decided on 11.11.2008)

Discontinuance of supply to consumer neglecting to pay charge - Respondent was given electric connection by the appellant - Premises of the respondent were checked by the officials of the appellant and found that the respondent was committing theft of electricity by providing bolt under the CT Chamber of the meter - Whether the reference to the electrical inspector was necessary in the case of theft

In Sub-section (1) of Section 24 of the Indian Electricity Act, 1910, the following proviso shall be added, namely, provided that no Court shall take cognizance of any matter pertaining to the payment of charges due from any person to a licensee in respect of the supply of energy to him or stay the recovery thereof unless -(i) he has exhausted all the remedies available to him under the terms and conditions governing the supply of energy to him; and (ii) he has deposited forty percent of the amount outstanding against him, with the licensee.

Unfortunately, the effect of the amendment of Section 24 of Central Act 9 of 1910 has not been considered by either by the trial court or by the first appellate court or the High Court. Reference may be made to a decision of M.P. Electricity Board, Jabalpur v. Harsh Wood Products MANU/SC/0580/1996, Supreme Court laid down that in the case of theft notice was not required. Similarly, in Sub-Divisional Officer (P) UHBVNL v. Dharam Pal 2006 (12) SCC 222 in paragraph 7 to 11, it was observed that reference is not necessary to the Electrical Inspector in the case of theft. The applicability and the relevance of these judgments have not been considered by the High Court.

The impugned judgment of the High Court set aside. Appeal is allowed.

• ARBITRATION

Standard Corrosion Controls Pvt. Ltd. Vs. Sarku Engineering Services SDN BHD (Decided on 11.11.2008)

Appointment of arbitrators - Applicant prayed for appointment of an arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996 for resolution of the disputes arose between the parties invoking the arbitration clause in the agreement of Article X

Article X Arbitration stated that any dispute or difference in view regarding this contract shall be settled, in so far as is possible, by mutual consultation and consent, failing which by arbitration to be held at Mumbai, India applying the Arbitration Rules of the International Chamber of Commerce by a single arbitrator. As per Arbitration Rules of the International Chamber of Commerce (ICC) stated that, the party who wishes to have recourse to arbitration under the said Rules is required to request for arbitration to the ICC Secretariat.

The parties had agreed that any dispute between them shall be settled as far as possible by mutual consultation and consent, failing which by arbitration to be held at Mumbai applying the Arbitration Rules of the ICC. Applicant has to apply to the Secretariat of the ICC, as mentioned in the Arbitration Rules of the ICC, and it cannot approach this Court for appointment of an Arbitrator. No doubt, the arbitration will have to be held at Mumbai, but the entire procedure of appointment of the Arbitrator has to be in accordance with the Arbitration Rules of the ICC, which requires that first a request has to be made to the Secretariat of the ICC. Admittedly, the applicant has not approached the ICC Secretariat. Hence, the application filed by the applicant is not maintainable at all.

The scheme of the Act is that under Section 11(2), the parties are free to agree on a procedure for appointing an Arbitrator subject to the provisions of Section 11(6). A petition under Section 11(5) of the Act would not lie if there is any agreement between the parties providing for the procedure for appointment of an arbitrator. In the present case, there is Article X of the agreement (quoted above). Arbitration Application is not maintainable and it is accordingly dismissed.

• SERVICE

Chandrashekar A.K. Vs. State of Kerala and Anr. (Decided on 07.11.2008)

Appellant employed in the respondent company, was a full time employee - Appellant resigned from services - Whether a person who has resigned from service is entitled to the benefit of revision of scale of pay with retrospective effect

In UCO Bank and Ors. v. Sanwar Mal MANU/SC/0315/2004, a distinction has been made between the terms "retirement" and "resignation" by a Division Bench of Supreme Court has held that, the words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings.

Appellant was not in a pensionable service. He resigned voluntarily. The reason for tendering resignation by him is not known. Whether appellant after submitting his resignation had been working in the better scale of pay is also not known. Ordinarily, a person retiring from service on pensionable post would obtain the benefit of the revision in the scale of pay. The question as to whether the scale of pay would be revised or not is a matter of policy decision for the State. No legal right exists in a person to get a revised scale of pay implemented. It may be recommended by a body but ultimately it has to be accepted by the employer or by the State, who has to bear the financial burden. The appeal is dismissed accordingly.

HIGH COURT

• DIRECT TAXATION

DELHI HIGH COURT

Haryana Acrylic Manufacturing Company Vs. The Commissioner of Income-tax IV and Anr. (Decided on 03.11.2008) MANU/DE/1554/2008

Cardinal Rule of interpretation - Whether a proviso to a particular provision of a statute only embraces the field which is covered by the main provision or whether it carves out an exception to the main provision to which it has been enacted as a proviso and to no other.

Held, the proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Therefore it is to be construed harmoniously with the main enactment. (Per Das, C.J.) in Abdul Jabar Butt v. State of Jammu & Kashmir (1957) SCR 51, 59.

ALLAHABAD HIGH COURT 

Preet Leasing (P) Ltd. Vs. Commissioner of Income-tax II (Decided on 18.10.2008) MANU/UP/0761/2008

Appeal has been preferred under Section 260-A of the Income Tax Act, 1961- Assessee is engaged in the hotel business- Assessee had debited in the profit and loss account a sum of Rs. 4,47,545/- as lodging commission paid to rickshaw-puller, auto drivers for bringing the customers to hotel from bus-stand and railway station- Whether it was proper for the Appellate Tribunal to disallow 40% of the expenditure which the appellant claim that it was spend for the promotion of business

If it can be proved by the Assessing officer that the expenditures were not genuine, the Tribunal can rightly disallow the total claims made by the assessee. Held, that as per the findings of the Assessing Officer, the claim of the assessee was made by preparing false vouchers since the thumb bearings impressions could not be verified. Therefore, the decision of the Commissioner of Income Tax (Appeals) to disallow 40% of the claim can be treated as fair and lenient.

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Pfizer Enterprises Sarl Vs. Cipla Ltd. AND P.M. Diesels Ltd. Vs. Patel Field Marshal Industries (Decided on 24.10.2008) MANU/DE/1523/2008

Overlapping jurisdiction- two statutes- The question was whether the existence of jurisdiction under Copyright Act, 1957 would also enable the clubbing of the dispute arising from the Trade and Merchandise Act, 1958

Held, that the existence of territorial jurisdiction by virtue of one Act would not clothe that very Court with a determination of a dispute under another Act only because of the provisions of Order II of the CPC. But if the plaint discloses that the Defendant has violated the Plaintiffs Trademark or Copyright in a particular place, the cause of action would arise therein and it would clothe that Court with jurisdiction.

• CONSTITUTION/ CRIMINAL

MADRAS HIGH COURT

Smt. Jyothi Vs. The Commissioner of Police and The Secretary to Government, Home, Prohibition and Excise Department (Decided on 15.10.2008) MANU/TN/0963/2008

Constitution, Art 22- Representation- Whether supplying of a complicated order against the appellant without supplying him the translation in script/ language which he understands would amount to denial of the right of being communicated.

Held, if the grounds of detention supplied to the detenu were in English which the detenu under the provisions of COFEPOSA did not know or understand, and no translated copies either in the regional language or at least in Hindi was supplied to him, than there was a clear violation of the provisions of Article 22(5) of the Constitution. Also, it amounts to the denial of right of being communicated as the detenue would not be able to make proper representation.

• TRUSTS AND SOCIETIES

DELHI HIGH COURT

Narender Kumar Jain Vs. Govt. of NCT of Delhi (Decided on 21.10.2008) MANU/DE/1488/2008

Election - Eligibility - Delhi Cooperative Act- Section 35 - What is the general eligibility criteria for a candidate as per the abovementioned provisions.

Under the ambit of the above mentioned provisions, the shareholder seeking election shall not be a defaulter. Section 35 sub-section (6) of the act clearly stipulates that "no person shall be eligible to be elected as a member of the committee of a cooperative society unless he is a shareholder of the Cooperative society".

• PROPERTY/ CIVIL

BOMBAY HIGH COURT

Peninsula Land Ltd. (Formerly known as Morarjee Realties Ltd. and prior thereto as Morarjee Goculdas and Weaving Company Limited) and Ors. etc. etc. Vs. Brihan Mumbai Mahanagarpalika, The Municipal Commissioner of Brihan Mumbai Mahanagarpalika, The Chief Judge Small Causes Court and The State of Maharashtra through the Government Pleader and Ors. and Ors. etc. etc (Decided on 24.10.2008) MANU/MH/1027/2008

"No party can file an appeal against any judgment, decree or order as a matter of course in the absence of a suitable provision of some law conferring on the party concerned the right to file an appeal against any judgment, decree or order". Whether the right to prefer an appeal, as a right created by statute, can be made conditional or qualified.

Held, that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced and such right or remedy will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary application takes away such right or remedy. The principle of `appeal being a statutory right and no party has a right to file appeal except in accordance with the prescribed procedure' is followed in the case of M Ramnarain Private Limited and Anr. v. State Trading Corporation of India Limited MANU/SC/0017/1983, wherein the Supreme Court held, the right to prefer an appeal is a right created by statute. No party can file an appeal against any judgment, decree or order as a matter of course in the absence of a suitable provision of some law conferring on the party concerned the right to file an appeal against any judgment, decree or order. The right of appeal so conferred on any party may be lost to the party in appropriate cases by the provisions of some law such as the law of limitation and also by the conduct of the party and in appropriate cases a party may be held to have become disentitled from enforcing the right of appeal which he may otherwise have. This view was reiterated with approval by the Supreme Court in the case of Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad and Ors. MANU/SC/0300/1999, where the Court stated that even right of appeal can be made conditional or qualified and it is a creation of a statute alone

• PROPERTY

BOMBAY HIGH COURT

Bakerao S/o Rangrao Ulhe Vs. Ramkrishna Rajaram Kshirsagar through Guardian his wife Swaraswatibai W/o Ramkrishna Kshirsagar and Pandurang Vitthalrao Kshirsagar (Decided on 24.10.2008) MANU/MH/1033/2008

Property given in lieu of wife's right of maintenance - Whether estranged wife is entitled to enforce her right on property of husband as maintenance under the provisions of Hindu Adoptions and Maintenance Act or otherwise

Held, that at the time of will, if there was no pre-existing right of maintenance to the wife and as such, Section 14 of the Hindu Succession Act could not make her absolute owner.

• MEDIA AND COMMUNICATION/ CIVIL

DELHI HIGH COURT

International Film Distributors Vs. Shri Rishi Raj (Decided on 23.10.2008) MANU/DE/1542/2008

Territorial jurisdiction- cause of action - Whether the jurisdiction of the court depends upon the defence taken by the defendant

Held, it is the allegation made in the plaint which decide the forum. The question regarding jurisdiction can only be gone into after the determination of cause of action and also when evidence of the parties is recorded in the case.

• ELECTION

ANDHRA PRADESH HIGH COURT

The Gudivada Cooperative Urban Bank Ltd. Vs. Smt. Sheik Mahaboobi and Ors. (Decided on 29.10.2008) MANU/AP/0490/2008

Disqualification from being a voter - Writ Petition filed by the Respondents seeking writ of Mandamus - The Respondents were on the electoral rolls - Around 7000 voters name deleted from the voters list without any information - Trial Court ordered for stay of election for period of four weeks - Appeal filed by the Appellant against the order of the Trial Court - Whether deleting names of certain members from the voter's list without any intimation valid and whether Court can interfere

Under Chapter VIII of the A.P. Cooperative Societies Act, 1964, Section 61 (3) lays down that all disputes in regard to the election to a committee are to be referred for decision to the Tribunal. Limitation sought to be reserved irrespective of the fact whether on publication of electoral rolls are part of the process of election within the meaning of Article 329(d) of the Constitution of India. In Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra MANU/SC/0602/2001, the Apex Court has held that the High Court should not stay the continuation of the election process even though there may be some alleged illegality of breach of rules while preparing the electoral rolls. There is a clear distinction on which Court can entertain a writ petition on the limitation period. Therefore, the Court held that taking into consideration the grounds as sought to be raised in the writ petition as against the voters list can equally form part of the ground in an election petition to assail the ultimate elections result, and as per the principles laid down this Court cannot not venture to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India nor can make any interdiction in the process, hence the petition was allowed.

• ARBITRATION

DELHI HIGH COURT

Siel Ltd. and Anr. Vs. Prime Industries Ltd. AND Prime Industries Ltd. Vs. Sri Ram Foods and Fertiliser (Decided on 23.10.2008) MANU/DE/1549/2008

Number of Arbitrators - Rule 21(b) of the rules of the Indian Council of Arbitration - SIEL entered into an agreement called as the MoU - After March, SIEL did not place any order on the claimant - Feeling aggrieved the claimant issued a legal notice - Arbitration clause in the MoU - Prime Industries Ltd. filed an application for appointment of Arbitrator under Section 11(6), The Arbitration and Conciliation Act, 1996 but rejetced by the Court - Prime Industries Ltd. sent a letter to Indian Council of Arbitration for arbitration of dispute with the SIEL - ICA appointed a Sole Arbitrator - Application moved by SIEL contending that Rule 21-B of the ICA Rules contrary to the Clause 18 of the Arbitration Agreement - Application rejected by the Arbitrator - Held that the Arbitral Tribunal formed by the ICA in accordance with the Arbitration Agreement and as per the ICA rules - Appeal filed by SIEL attacking the award passed by the Arbitral Tribunal - Whether Arbitral Tribunal consisting of only one arbitrator illegal and award passed void

According to Rule 21 (a) all disputes where claims exceed Rs. 50 lakhs are to be decided by a panel of three arbitrators, unless after notification of request for arbitration, the parties agree to refer the dispute to a sole arbitrator. The term an 'arbitrator' is to be understood in the context of the parties desire for arbitration. The parties further wanted the arbitration to be in accordance with the ICA rules, which envisaged that in such claims, the tribunal was to be of three arbitrators. Another important fact to be considered is the contract formation between the parties. The Court held that the parties are at the liberty to adopt any mode of Alternative Dispute Resolution and decide the rules. According to Clause 18 of the MoU, the dispute had to be referred to Arbitral Tribunal consisting of three arbitrators, thus, the Arbitral Tribunal consisting of only one arbitrator was invalid and so as the arbitral award passed by it. 

• CRIMINAL

BOMBAY HIGH COURT

Qayyum Ibrahim Mohammad Shaikh, Mr. Salim Abu Sama Khan and Iqbal Ismail Shaikh @ Iqbal Hatela Vs. The State of Maharashtra and Mohammed Talha Abdul Mutali Ansari (Decided on 22.10.2008) MANU/MH/1015/2008

Scheme of the Criminal Procedure Code - Compounding of the offences - The Criminal jurisprudence is that once an investigation discloses commission of an offence it should reach to its normal conclusion by way of a fair trial - Several cases filed against the Applicant - Whether FIR can be quashed or not

A complete scheme under Section 320 of The Code of Criminal Procedure is provided for compounding of offences punishable under Indian Penal Code. There is a difference between the power of the Court to compound offences and quashing of the FIR or criminal proceedings. Power to compound is a statutory power granted under Section 320, the Code of Criminal Procedure. The FIR discloses cognizable offence having been committed and the impact of quashing of an FIR on administration of criminal justice and also on the social fabric must be determined, therefore FIR cannot be quashed.

• SERVICE

DELHI HIGH COURT

Khem Chand and Ors. Vs M.C.D and Anr. (Decided on 31.10.2008) MANU/DE/1547/2008

Ante Dated Promotion - Promotion made by the Respondents to the post of Senior Pharmacist not in accordance with the roster point system - The criterion for selection by insisting on five years regular service in the grade fallacious - Agreement between the parties that if an eligible candidate not likely to be promoted within a period of one year or more, then efforts would be made to relax the qualification of general as well as SC candidates from 5 years to 3 years or from 3 years to 2 years - Suit filed before the Trial Court - It was observed that once the appellants not within the normal zone of consideration when the matter for filling up the posts of Senior Pharmacists arose, there was no error committed by the Respondents in not promoting the Appellants earlier when they were promoted - Appeal filed by the Appellant - Whether Appellant entitle to promotion by the Respondent

Held, adherence to the rule of equality in public employment is a basic feature of Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. It was also observed that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates

DELHI HIGH COURT

Union of India (UOI) through Commissioner of Police and Principal/Additional Commissioner of Police (Training) Vs. Shri Nand Kishor Aggarwal S/o Shri Duli Chand Aggarwal and The Central Administrative Tribunal Principal Bench (Decided on 03.11.2008) MANU/DE/1552/2008

Discharge Simplicitor - The Respondent selected for the post of Provisional Sub Inspector (PSI) in the Delhi Police - Respondent taking treatment for mental depression - The Respondent requested for exemption from training but the same was rejected - The Respondent informed his officer that he is not able cope with the training - The training of the Respondent cut short and his services were terminated under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 - The Respondent challenged his termination and demanded Departmental Enquiry - Tribunal allowed his Application - Termination of the services of the Respondent was punitive in nature i.e. By way of Punishment - Appellant filed an appeal - Whether termination of the Respondent valid

The only test to be applied in this situation is to determine the motive for the termination of services i.e. whether it was by way of punishment or was it a discharge simplicitor and where the discharge order and the motive for the discharge is simply unsatisfactory work, the discharge being a discharge simplicitor, there is no necessity of holding a departmental enquiry. The assessment of the Appellant that the Respondent would not be a fit person to become an officer after completion of the training was correct and based on the principle of discharge simplicitor.

• TENANCY

DELHI HIGH COURT

S. Makhan Singh Vs. Smt. Amarjeet Bali (Decided on 03.11.2008) MANU/DE/1544/2008

Protection of tenant under The Delhi Rent Control Act - Petitioner stopped paying rent and claimed title of the premises - Respondent filed suit for possession of the property in Trial Court - Application filed by the Petitioner contending that the Trial Court had no jurisdiction under Section 50 of The Delhi Rent Control Act and the suit property not valued properly - Trial Court held that no protection could be given to the tenant under the Delhi Rent Control as he denied the tenant-landlord relationship - Valuation of the Suit property to be done on the basis of annual rent the property fetched - Appeal filed by the Petitioner/Tenant - Whether Petitioner entitle to protection under The Delhi Rent Control Act

Held, Section 14 only gives protection to a tenant against eviction and this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. A tenant is estopped from challenging his title or right to let out the premises and if he does, he does at his own peril and law does not recognize such a person as legal tenant in the premises. When the tenant continues in possession of the premises after the tenant repudiates the title of the landlord, lease comes to an end by operation of law and because of the repudiation of title the landlord can file a suit for possession in Civil Court. Thus, the Petitioner is not entitled to protection under Section 50, The Delhi Rent Control Act.